This matter concerns the
question whether alcohol abuse should be treated as misconduct
rather than incapacity in circumstances
where the employee is not an
alcoholic.

The applicant seeks an order
that the
arbitration award made by the Second Respondent (the arbitrator)
under the auspices of First Respondent (the bargaining council)1be reviewed,
set aside and corrected. Although the arbitration was heard by a
Tokiso panelist, it was done under the auspices
of the bargaining
council. The applicant seeks to review it in terms of s 145 read
with s 158(1)(g) of the Labour Relations Act
(Act 66 of 1995).

The application is not opposed
by any other party. Although the third and fourth respondents
(SATAWU and its member, Ms LG Louw)
had appointed attorneys, those
attorneys filed a “notice of non-opposition” indicating
that they abide the decision
of this court.

As the application is not
opposed, the applicant did not seek costs.

GROUNDS FOR REVIEW

The grounds of review relied
upon by Applicant in its review application are set out in its
founding affidavit and may be summarized
as follows:

Second Respondent committed a
gross irregularity of a material nature in the conduct of the
arbitration proceedings by failing
to have proper regard, if any,
for the common cause facts and relevant legal principles,
specifically, by:

Failing to have regard for the
principles distinguishing misconduct from incapacity and, more
specifically, that the evidence
and common cause facts were that
Fourth Respondent (the employee) was not an alcoholic and did not
suffer from alcoholism.
The Second Respondent committed a gross
irregularity in extending the requirement to treat alcoholism as a
disease (i.e.
an incapacity) to employees who are not alcoholics
and who do not suffer from alcoholism (or any other medical
illness) simply
by virtue of the fact that their misconduct
involved alcohol;

Failing to properly consider
the importance of the rule that Fourth Respondent had breached and
the fact that Fourth Respondent
was in a safety critical position
which necessitated the strict application of that rule. In
assessing the rule Second Respondent
placed too much emphasis on
other less relevant or irrelevant factors;

Failing to apply the relevant
legal principles with respect to the relevance of a serious
written warning that had been issued
to the employee for a similar
offence and that was still valid;

Making the finding that Fourth
Respondent at most acted negligently in the consumption of alcohol
the night before she was
booked on duty, which finding is wholly
unreasonable and not logically sustainable.

Second Respondent exceeded his
powers by making an award requiring Fourth Respondent to submit to
rehabilitation and to comply
with the company policy. Such an award
is not contemplated in the context of the powers afforded to him in
determining a dismissal
dispute.

In evaluating the evidence in
the manner in which he did and concluding as he did, for all of the
reasons set out above, Second
Respondent’s decision was one
which a reasonable decision maker could not have made.

MATERIAL EVIDENCE AND
CHRONOLOGY OF FACTS

The material facts can be
summarized as follows:

Fourth Respondent was employed
by Applicant from 27 May 2002 until her dismissal on 29 May 2009.
At the date of her dismissal,
Fourth Respondent was employed as a
yard official earning a salary of R10 287, 00 per month.

The position of yard official,
which involves marshalling and coupling of trains, is a safety
critical position. Due to the
nature of the work performed the
offence of being under the influence of alcohol at work constitutes
serious misconduct in
terms of Transnet’s disciplinary code.

On 24 May 2009, being the date
upon which she committed the misconduct resulting in her dismissal,
Fourth Respondent had a valid
serious written warning for being
under the influence of alcohol at work which had been issued on 28
May 2008 and was valid
for twelve months.

At the arbitration hearing held
on 22 July 2009, Third Respondent (the employee’s trade
union, SATAWU) disputed both the
procedural and substantive
fairness of Fourth Respondent’s dismissal on the following
grounds:

That Applicant had not
afforded Fourth Respondent rehabilitation in terms of its Employee
Assistance Program (“EAP”);

That Applicant had applied the
sanction of dismissal inconsistently;

That, in determining the
sanction, the chairperson of the enquiry did not consider all
mitigating factors;

That the chairperson of the
disciplinary enquiry did not apply his mind to the matter and that
the sanction of dismissal was
predetermined.

In the arbitration award Second
Respondent found that:

There was no evidence to
suggest that the sanction was predetermined or that the
chairperson failed to apply his mind to the
matter;

Third Respondent’s
reliance on inconsistent application of the sanction of dismissal
was unsubstantiated and therefore
unfounded;

The chairperson of the enquiry
was well versed with Applicant’s EAP and Fourth Respondent’s
problems and could
have recommended counselling as a form of
action to address Fourth Respondent’s misconduct;

The valid serious written
warning was four days short of expiry and Fourth Respondent had
essentially not been disciplined
for 11 months and 26 days, which
indicated that she had taken the warning very seriously;

Personal circumstances had led
to Fourth Respondent consuming alcohol and arriving for work under
the influence, including
undisputed evidence that Fourth
Respondent had been abused the night before the incident;

Fourth Respondent had shown
remorse for her actions;

As Fourth Respondent had not
been allowed to work on the day of the incident, neither Applicant
nor its passengers were placed
in danger;

Other options short of
dismissal could have been exhausted;

Fourth Respondent could have
been suspended in terms of Applicant’s policy;

There was no evidence to
suggest that Fourth Respondent could not be trusted or that her
work had been affected and thereby
caused an irretrievable
breakdown in the relationship;

There was no evidence that
Fourth Respondent was incapable of fulfilling her functions in the
position that she had occupied;

Fourth Respondent was aware of
the safety hazards of being under the influence of alcohol at
work;

Fourth Respondent had
approached the chairperson of the disciplinary enquiry previously
regarding personal problems regarding
her in-laws and her possible
transfer to Queenstown; and

Fourth Respondent had not
acted with intent as, at best, she negligently consumed alcohol
the night before she was booked
on duty and accordingly she did
not deliberately flout Applicant’s rules for some or other
personal gain.

Having concluded as he did,
Second Respondent made an award:

Reinstating Fourth Respondent
into her position;

Ordering Applicant to pay
Fourth Respondent one month’s compensation; and

Ordering Fourth Respondent to
submit to rehabilitation in terms of paragraph 12 of Applicant’s
substance abuse policy
and to comply with such policy.

RELEVANT LEGAL PRINCIPLES

The Standard of Review

In Sidumo
& Another v Rustenburg Platinum Mines Ltd & Others (2007) 28
ILJ 2405
(CC)the
Constitutional Court held that the test to be used when determining
whether an arbitration award would be unreasonable, and
therefore
reviewable, is whether the decision of the arbitrator is a decision
“that a reasonable
decision maker could not reach.”2

In that case the Constitutional
Court found that, for a review to be successful, it must be
established by the Applicant that
the result of the arbitration
award falls outside of a “range
of reasonableness.”3

Misconduct, Gross Irregularity
and Acting in Excess of Powers

Matters may be taken on review
in terms of Section 145(2)(a) of the LRA on the grounds of the
arbitrator committing misconduct,
gross irregularity and/or acting
in excess of the powers conferred.

“In
the unreported case of Relyant Retail Limited t/a Bears Furnishers v
Commission for Conciliation, Mediation & Arbitration
& others
(case number JR2841/06) [reported at [2009] JOL 24327 (LC) –
Ed], this Court held that the function of the court in considering
whether or not to interfere with the arbitration
award on review is
limited to those grounds provided for in terms of section 145 of the
Labour Relations Act 66 of 1995, as suffused by the constitutional
standard of reasonableness. The reasonable standard entails the
applicant having to show that
the decision reached by the arbitrator
under the statutory arbitration system is one which a reasonable
decision-maker could not
reach (see Bato Star Fishing (Pty) v
Minister of Environmental Affairs & Tourism [2004] ZACC 15; 2004 (7) BCLR 687
(CC); Sidumo & another v Rustenburg Platinum Mines Ltd &
others (2007) 28 ILJ 2405 (CC) [also reported at [2007] ZACC 22; [2007] 12 BLLR 1097
(CC) – Ed]). In order to succeed in relying on the grounds set
out in section 145 the applicant must show that the commissioner:

(i) committed misconduct in
relation to the duties of the commissioner as an arbitrator;

(ii) committed a gross
irregularity in the conduct of the arbitration proceedings; or

(iii) exceeded the
commissioner’s powers.

[20]The court further held in
that case that the issue of whether or not the commissioner committed
a gross irregularity or failed
to apply his or her mind entails a
determination as to whether or not the complaining party was accorded
a full and fair hearing
by the commissioner. A fair and full hearing
entails a determination of all the issues which were placed before
the arbitrator
during the arbitration proceedings. The inquiry in
this respect focuses on the method or conduct of the decision-maker
and does
not concern itself with the correctness of the decision
reached by the arbitrator (see Sidumo at 1179A–C and 1180A–C).
There is however authority that it is not every irregularity that
would constitute gross irregularity.

[21]In the Bears Furnishers
case, supra, the court held that the judicial review powers given to
the Labour Court is not for the
purpose of necessarily weighing
evidence which was presented during the arbitration hearing, upon
which the commissioner acted
upon in arriving at his or her
conclusion. The enquiry which the court needs to conduct is whether
or not there is the evidentiary
basis for the conclusion reached by
the commissioner. In other words, the duty of the court in review is
to determine whether the
conclusion reached by the commissioner has
its support in substantial and credible evidence including
consideration and appreciation
of the issues arising from the dispute
and the facts...

[22]In addition… the
general rule, as I understand it, is that the function of a reviewing
court in dealing with the complaint
of gross irregularity is limited
to determining whether or not a commissioner in exercising the powers
given to him or her by the
Labour Relations Act did so within the
appropriate sphere of those powers and whether the conclusions
reached in the exercise of those powers are grounded
on the relevant
principle of law and supported by all the evidence and the material
facts which were presented during the arbitration
proceedings. I may
hasten to also say if there is deviation from the facts or the law it
must be of such a material nature, that
it would amount to a denial
of a fair hearing to the affected party, for that to warrant
interference with the award by the court.

[23] The question that arises
from the above is whether the conclusion reached by the commissioner
falls outside the range of reasonableness
so as to attract
interference with the award by the court... The question to ask in
considering the reasonableness or otherwise
of an award is to
determine whether the conclusion of the commissioner is one which a
reasonable decision-maker could not reach
(see Sidumo & another v
Rustenburg Platinum Mines Limited & others [2007] ZACC 22; [2007] 12 BLLR 1097
(CC)).”

Ngcobo J4,
in Sidumo and Another
v Rustenburg Platinum Mines Limited and Others,
supra,
considered the duty of commissioners to consider all the material
facts and stated as follows5:

“It
is plain … that CCMA arbitration proceedings should be
conducted in a fair manner…Fairness in the conduct of the
proceedings requires a commissioner to apply his or her mind to the
issues that are material to the determination of the dispute.
One of
the duties of a commissioner in conducting an arbitration is to
determine the material facts and then to apply the provisions
of the
LRA to those facts in answering the question whether the dismissal
was for a fair reason….

It follows therefore that
where a commissioner fails to have regard to material facts, the
arbitration proceedings cannot in principle
be said to be fair
because the commissioner fails to perform his or her mandate…This
constitutes a gross irregularity in
the conduct of the arbitration
proceedings … And the ensuing award falls to be set aside not
because the result is wrong
but because the commissioner has
committed a gross irregularity in the conduct of the arbitration
proceedings.”

When considering how to
determine whether a commissioner exceeded his or her powers the
Constitutional Court in that case set
out the relevant legislation
as follows:

“The
question whether a commissioner has exceeded his or her powers within
the meaning of s 145(2)(a) (iii) must be determined in the light of
the powers conferred on the commissioners under the LRA. In terms of
s 188(1)(a) a commissioner is required to determine whether the
reason for dismissal is a fair reason. In terms of s 188(2), a
commissioner is required to take into account the code in considering
whether or not the reason for dismissal is a fair reason.
Schedule 8
to the LRA contains the code in relation to dismissal. Item 1(3)
declares that -

'[t]he key principle in this
Code is that employers and employees should treat one another with
mutual respect. A premium is placed
on both employment justice and
the efficient operation of business. While employees should be
protected from arbitrary action,
employers are entitled to
satisfactory conduct and work performance from their employees'.

Item 2(1), in turn, provides
that '[w]hether or not a dismissal is for a fair reason is determined
by the facts of the case, and
the appropriateness of dismissal as a
penalty'. Item 7 in turn provides that… [The arbitrator in]
determining whether a
dismissal for misconduct is unfair should
consider the factors set out in item 7(a) and (b).

All these provisions must be
understood in the context of the right to fair labour practices in s
23 of the Constitution and the
obligation imposed on a commissioner
'to determine the dispute fairly and quickly'. In NEHAWU [the
Constitutional Court]…
concluded:

'[T]he focus of s 23(1) is,
broadly speaking, the relationship between the worker and the
employer and the continuation of that
relationship on terms that are
fair to both. In giving content to [the right to fair labour
practices], it is important to bear
in mind the tension between the
interests of the workers and the interests of the employers which is
inherent in labour relations.
Care must therefore be taken to
accommodate, where possible, these interests so as to arrive at the
balance required by the concept
of fair labour practices. It is in
this context that the LRA must be construed.'”6

“… [T]he
award which a commissioner ultimately makes, must be fair to both the
employer and the employee. The LRA regulates unfair
dismissals in
express and detailed terms and provides a code that should be taken
into account by commissioners. And this defines
the powers of the
commissioner in relation to awards that they may make under the LRA.
It follows from this that where a commissioner
makes an award which
is manifestly unfair either to the employer or the employee, the
commissioner exceeds his or her powers under
the LRA. Such an award
falls to be reviewed and set aside under s 145(2)(a) (iii) of the
LRA.”

The crucial enquiry is whether
the conduct of the decision maker complained of prevented a fair
trial of issues.

Further, Navsa AJ stated the
following in Sidumo and Another v Rustenburg Platinum Mines
Limited and Others, supra:

“To
sum up. in terms of the LRA, a commissioner has to determine whether
a dismissal is fair or not. A commissioner is not given
the power to
consider afresh what he or she would do, but simply to decide whether
what the employer did was fair. In arriving
at a decision a
commissioner is not required to defer to the decision of the
employer. What is required is that he or she must
consider all
relevant circumstances.”

As set out above, our courts
have recognised that a latent gross irregularity in the conduct of
the arbitration proceedings may
occur to the extent that an
arbitrator may mistake or misunderstand the point in issue thereby
failing to afford the parties
a fair trial by virtue of the
arbitrator misconceiving the whole nature of the enquiry or of his
duties in connection with that
process. From the judgments referred
to above, the duties of an arbitrator in respect of process may be
summarised as follows:

To apply the law of evidence;

To apply the substantive law of
dismissal;

To apply his or her mind to all
materially relevant factors;

To disregard materially
irrelevant factors; and

To weigh up all the materially
relevant factors and issues.

In addition, the judgments
referred to above establish that to the extent that an arbitrator
deviates from complying with those
duties, such deviation must not
be of such a nature that it materially deprives a party of a fair
hearing.

Misconduct or Incapacity

Section 10 (3) of the Code of
Good Practice: Dismissal specifically includes alcoholism as a form
of incapacity and suggests that
counselling and rehabilitation may
be appropriate measures to be undertaken by a company in assisting
such employees. In fact,
the requirement to assist such employees by
providing them with treatment has been widely accepted. However,
when an employee,
who is not an alcoholic and does not claim to be
one, reports for duty under the influence of alcohol, she will be
guilty of
misconduct. The distinction between incapacity and
misconduct is a direct result of the fact that it is now accepted in
scientific
and medical circles that alcoholism is a disease and that
it should be treated as such. This has been accepted by the CCMA and
bargaining councils. See, for example:

“Employees
may be dismissed if they consume alcohol or narcotic drugs to the
point that they are rendered unfit to perform their
duties. There
may, however, be a thin dividing line between cases in which alcohol
or drug abuse may properly be treated as misconduct,
and those in
which it should be treated as a form of incapacity. The Code of Good
Practice: Dismissal specifically singles out
alcoholism or drug abuse
as a form of incapacity that may require counselling and
rehabilitation [Item 10(3)]...

It is clear, however, that in
certain contexts being intoxicated on duty can be treated as a
disciplinary offence...

Special mention is made [in
the Code of Good Conduct: Dismissal] of employees addicted to drugs
or alcohol, in which cases the employer
is enjoined to consider
counselling and rehabilitation. The dividing line between addiction
and mere drunkenness is sometimes blurred.
An employee who reports
for duty under the influence of alcohol or drugs may be charged with
misconduct. Whether such an employee
should be considered for
counselling or rehabilitation depends on the facts of each case.
These steps are generally considered
unnecessary if employees deny
that they are addicted to drugs or alcohol, or that they were under
the influence at the time. Rehabilitative
steps need not be
undertaken at the employer's expense, unless provision is made for
them in a medical aid scheme.”

Where an employee is suffering
under incapacity as a result of their alcoholism, the employer is
under an obligation to counsel
and assist the employee in accessing
treatment for their disease. The purpose of placing such a duty on
an employer is based
on the current medical understanding of
alcoholism – that it is a diagnosable and treatable disease.
This disease results
in the incapacity of the employee.

In terms of how to deal with the
employee, the distinguishing feature in such cases of alcoholism
appears to be, as with all instances
of incapacity, that the
employee is not at fault for her behaviour – the employee
cannot be blamed for their disease and
its impact on their behaviour
and discipline would be inappropriate in the circumstances.

I agree with Mr Cassels,
however, that the category of misconduct for reporting for duty
under the influence has not been extinguished by the incapacity
classification for employees with alcoholism. An obligation to
assist an employee who does not suffer under such incapacity does
not rest on the shoulders of an employer. Such an employee is
responsible for their actions and can, and should, be held
accountable
for any misconduct they commit.

It is not necessary for me to
consider how one is to determine whether an employee has alcoholism
as it is common cause and a
fact accepted by the Second Respondent
that the Fourth Respondent is not an alcoholic and is not suffering
from alcoholism.

Fairness of Dismissal for
Misconduct: Under the Influence

Once a commissioner finds that
an employee is not an alcoholic he/she is required to consider
whether a finding of guilt is fair
and whether the sanction applied
by the employer is reasonable and justified in the circumstances. In
order to do this the commissioner
is required to continue to apply
the law relating to misconduct and not that relating to incapacity.

The relevance of harm caused
by or the potential for harm in cases involving alcohol related
misconduct

Grogan9,
in discussing the case of Tanker
Services (Pty) Ltd v Magudulela [1997] 12 BLLR 1552 (LAC)in which it was found that the
employee, who was found to have been under the influence of alcohol,
committed an offence justifying
dismissal, notes the following:

“...[I]n
Tanker Services (Pty) Ltd v Magudulela the employee was dismissed for
being under the influence of alcohol while driving
a 32-ton
articulated vehicle belonging to the employer. The court held that an
employee is 'under the influence of alcohol' if
he is unable to
perform the tasks entrusted to him with the skill expected of a sober
person. The evidence required to prove that
a person has infringed a
rule relating to consumption of alcohol or drugs depends on the
offence with which the employee is charged.
If employees are charged
with being 'under the influence', evidence must be led to prove that
their faculties were impaired to
the extent that they were incapable
of working properly. This may be done by administering blood or
breathalyser tests...

Whether employees are unable
to perform their work depends to some extent on its nature. In Tanker
Services, the question was whether
Mr Magudelela's faculties had been
impaired to the extent that he could no longer perform the 'skilled,
technically complex and
highly responsible task of driving an
extraordinarily heavy vehicle carrying a hazardous substance'. Having
found that he could
not safely do so in his condition, the court
concluded that Magudelela's amounted to an offence sufficiently
serious to warrant
dismissal.”

As to whether an employee, being
caught before any serious incident occurs, should be treated more
favourably than another who
was not caught, the arbitrator in NUMSA
obo Davids/Bosal Africa (Pty) Ltd [1999] 10 BALR 1240 (IMSSA) was
of the opinion that the dismissal of a crane driver was justified
despite the fact that he had operated the crane without
mishap for
some time before the level of alcohol in his bloodstream was
discovered to be three times the legal limit for driving
a vehicle.

This finding was confirmed by
the Labour Court in Exactics-Pet
(Pty) Ltd v Petalia NO & other (2006) 27 ILJ1126 (LC)where
Revelas J stated the following10:

“In
the arbitration of NUMSA obo Davids v Bosal Africa (Pty) Ltd [1999]
10 BALR 1240 (IMSSA), the union argued that, although its
member had
operated a heavy duty crane with alcohol in his bloodstream on the
material date, his physical condition did not prevent
him from
performing properly since he had managed to operate the crane for
approximately three hours before his condition was detected.
In
response to this strange submission the arbitrator, Dr Grogan, held
as follows:

'However the plea that the
moral culpability of a person who is drunk in charge of a vehicle or
machinery is diminished because
he failed to have an accident before
being apprehended, is clearly preposterous. Were that defence to be
upheld in traffic courts,
the offence of driving under the influence
of liquor would be rendered unenforceable, except when the accused
had had an accident.'

The arbitrator's finding in
the matter before me, is akin to stating that the ability of the
fourth respondent to work for two hours
without causing an accident,
meant that either he was not drunk or that he should not be held
liable for his state of intoxication.
That is a logically
unsustainable argument.”

Mr Cassels submitted that
the ruling in Exactics-Pets should logically extend to
situations where an employee reports for duty and fully intends to
perform their job function but
is prevented from doing so by a
diligent employer. I agree. The fact that the employee was not
allowed to work in his or her
intoxicated state should not prevent
or mitigate the employee’s liability for their state of
intoxication. This is particularly
relevant where, had the employee
actually succeeded with their intention to perform their job
function, their state would have
made their job extremely dangerous,
given the nature of their job function.

Progressive discipline and
factors to consider when determining whether dismissal is justified

With regard to sanction, Section
3 of Schedule 8 of The Code of Good Practice: Dismissal places an
expectation on employers to
use corrective and progressive
discipline in dealing with the misconduct of employees. It is also
trite that in certain circumstances
dismissal for a first time
offence may be appropriate where such offence is of a serious
nature.

“A
commissioner will take into account the totality of circumstances. He
or she will necessarily take into account the importance
of the rule
that had been breached. The commissioner must of course consider the
reason the employer imposed the sanction of dismissal,
as he or she
must take into account the basis of the employee's challenge to the
dismissal. There are other factors that will require
consideration.
For example, the harm caused by the employee's conduct, whether
additional training and instruction may result in
the employee not
repeating the misconduct, the effect of dismissal on the employee and
his or her long-service record. This is
not an exhaustive list.”

There may be other relevant
factors to consider when determining whether dismissal is fair.

I agree with the suggestion made
by Mr Cassels that in cases involving misconduct for
reporting for duty under the influence of alcohol a commissioner
should, in determining
the fairness of dismissal, consider and weigh
against each other (based on the above), among other things:

That the employee knew of the
rule and was aware that breaching it could result in dismissal;

That the employee wilfully
committed the misconduct;

The nature and responsibilities
of the employee’s job function;

The basis for the employee’s
challenge to dismissal;

The importance of the rule
breached;

The principles and necessary
application of progressive discipline and the importance of
consistency;

The employee’s
disciplinary record, including the presence or lack of any relevant
valid warnings of final written warnings
that may be in effect;

The harm (or potential to bring
harm) as a result of the misconduct.

Job function and the
importance of the rule breached

The job function of the employee
is relevant in determining the fairness of dismissal in cases
dealing with being under the influence
of alcohol. Where the job is
highly skilled, responsible or hazardous or the offence is committed
by a senior employee who should
be beyond reproach, the courts have
found that dismissal for a first offence is justified.

[Tanker Services, supra.]

It seems to me that in instances
where the job function of an offending employee is such that
misconduct of this nature would
be extremely dangerous and could
result in death, injury or damage, a strict application of the rule
forbidding it must be applied.
Strict application of such a rule is
of importance to the company, its employees, and public policy.
Commissioners, in weighing
up the evidence before them, must have
due regard for the importance of such a rule and its role in
justifying the dismissal
of an employee.

Schedule 8 of The Code of Good
Practice: Dismissal specifically provides for instances where
progressive discipline is simply
inappropriate and dismissal for a
first offence is justifiable. A number of cases have found that in
certain circumstances misconduct
relating to alcohol justifies
dismissal.

[Tanker Services, supra.]

Clearly, the importance of the
rule and the implications of its transgression must be an essential
consideration in determining
whether dismissal is justified.

A further consideration ought to
be the implications of being lenient in the application of an
important rule and the message
such lenience sends to other
employees regarding the infringement of such a rule. The need to
deter other employees from committing
the same misconduct is a
response to risk management and is as legitimate a reason for
dismissal as a breakdown in trust. In
this regard Conradie JA in De
Beers Consolidated Mines Ltd v Commission for Conciliation,
Mediation & Arbitration & others (2000) 21 ILJ 1051 (LAC)12stated the following:

“A
dismissal is not an expression of moral outrage; much less is it an
act of vengeance. It is, or should be, a sensible operational
response to risk management in the particular enterprise. That is why
supermarket shelf packers who steal small items are routinely
dismissed. Their dismissal has little to do with society's moral
opprobrium of a minor theft; it has everything to do with the
operational requirements of the employer's enterprise.”

Application of a Valid Serious
Final Written Warning for the Same Type of Misconduct

The Labour Appeal Court
considered the relevance, application and purpose of final written
warnings in National Union of Mineworkers & Another v Amcoal
Colliery t/a Arnot Colliery & Another (2000) 5 LLD 226 (LAC).
That case involved an instance of collective misconduct. The
employees who were party to the misconduct had varying levels of
discipline on their file. Those already on final written warnings
were dismissed. The other employees received a lesser sanction
which
was subsequently reduced by one level in terms of the company’s
progressive disciplinary structure (e.g. an employee
with a clean
record was initially given a serious written warning with was later
reduced to a warning). Those who had been dismissed
did not have
their sanctions reduced and the Honourable Court found that this was
fair. In this regard the court was of the opinion
that an argument
that the sanction of dismissal should have also been reduced failed
to consider the fact that the other employees
had disciplinary
records that allowed for a lesser sanction than that initially
imposed. Their records did not constrain the
employer to impose a
particular punishment and nothing else. The employees already on a
final written warning however left the
employer with little choice
but to dismiss them. If their dismissal had been reduced it would
have been to a final written warning
and there would have been no
progression of discipline at all. The Labour Appeal Court was of the
opinion that failure to impose
the sanction of dismissal would mean
that they were not punished for that offence and that further, the
employee's offence was
a fairly serious one and did not justify the
extension of any final warning.

“...[A]n
employee’s disciplinary record may be taken into account when
considering whether the employee should be dismissed
for a particular
offence. This follows from the requirement that dismissal should be
‘progressive’. An employee on
a final warning for the
same offence will normally be regarded as irredeemable, and dismissal
will be justified if the employee
commits a similar offence during
the currency of the warning.”

In terms of the relevance of
valid written warnings the courts have accepted that the period of
validity of a final written warning
may differ depending on the
gravity of the offence. This is consistent with the principles of
progressive discipline.

CWIU & another v AECI
Paints (Natal) (Pty) Ltd (1989) 10 ILJ311 (IC)

Generally, a final written
warning valid for 12 months serves as a clear and strong
communication to the employee that their conduct
in this regard is
extremely serious and will not be tolerated by the employer.

Usually, the presence of a valid
final written warning at the time of the commission of the same or
similar form of misconduct
should be properly interpreted as
aggravating in nature. The principles of progressive discipline
require such a re-offending
employee to usually be considered
irredeemable.

Even in circumstances where a
final written warning or a string of warnings have expired, a
sanction of dismissal may still be
justified. In this regard
Nicholson AJ in Gcwensha
v Commission for Conciliation, Mediation & Others (2006) 27 ILJ927 (LAC)stated
the following:14

“Even
in the absence of a valid final written warning an employer is
entitled to dismiss an employee in appropriate circumstances.
It must
also be recalled that there was in existence a written warning dating
from March the previous year with a 12-month duration.
The appellant
has a deplorable employment record and there is a litany of
transgressions to which I have alluded. An employer is
always
entitled to take into account the cumulative effect of these acts of
negligence, inefficiency and/or misconduct. To hold
otherwise would
be to open an employer to the duty to continue employing a worker who
regularly commits a series of transgressions
at suitable intervals,
falling outside the periods of applicability of final written
warnings.An
employee's duties include the careful execution of his work. An
employee who continuously and repeatedly breaches such a duty
is not
carrying out his obligations in terms of his employment contract and
can be dismissed in appropriate circumstances.

...

I accept that the purpose of a
warning is to impress upon the employee the seriousness of his
actions as well as the possible future
consequences which might ensue
if he misbehaves again, namely that a repetition of misconduct could
lead to his dismissal. That
seems to be the purpose of the warning
issued in October to the appellant. I am of the view that an employer
is always entitled
to look at the cumulative effect of the misconduct
of the employee.”

Negligence, Under the
Influence and Misconduct

Negligence can be defined as “a
failure to comply with the standard of care that would be exercised
in the circumstances by a reasonable person.”15

As is obvious from that
definition, there is sometimes an overlap between poor work
performance and negligence. Negligence can
be treated as either
incapacity or as misconduct, depending on the circumstances. The
basis for culpability in negligence cases
is the lack of care and/or
diligence accompanying the act or omission. The test for negligence
is an objective one, namely whether
the harm (or potential harm) was
foreseeable and whether a reasonable person would have guarded
against its occurring.

Negligence does not extend to
acts where an individual, knowing full well the probability of the
consequences of their actions
and the dangers in their behaviour,
deliberately and wilfully chooses to behave in such a manner
regardless of the consequences.

Second Respondent in his
arbitration award found that it was common cause that Fourth
Respondent:

Was not an alcoholic;

Had reported for work on 24 May
2009 under the influence of alcohol.

It was common cause on the facts
that Fourth Respondent was not incapable of performing her functions
but that she had made herself
guilty of misconduct in presenting
herself for duty whilst under the influence of alcohol.

In the circumstances, on a
proper evaluation of the evidence and on a proper application of the
legal principles distinguishing
misconduct from incapacity, Second
Respondent ought to have determined that Applicant’s Employee
Assistance Programme (EAP)
was not relevant and Applicant was not
obligated to offer Fourth Respondent assistance though it.

However, Second Respondent made
the following finding:

“The
evidence of the Applicant was that she had raised her personal
problems with Mr Majola. They were in discussions regarding possible
solutions...Mr Majola as the chair of the enquiry also, was best
placed to understand the situation the Applicant was in and could
have recommended counselling as a form of action to address the issue
given the fact that he was aware of her problems.”

I agree with Mr Cassels
that personal problems of employees are not relevant for determining
whether or not an employee is an alcoholic and the matter
would more
properly be treated as one of incapacity. Alcoholism is a disease.
It is leads to incapacity. Personal issues may
exist that aggravate
the disease but an employee who is not suffering from a disease
cannot, because of personal circumstances,
be treated as though they
are.

Second Respondent’s
finding is basically that although Fourth Respondent does not have a
disease amounting to incapacity
she should be treated as though she
does. That approach is not founded in law and places an unfair
burden on the employer. Such
reasoning would make the distinction
between incapacity and misconduct for alcohol related matters
meaningless and the extension
of such reasoning would result in
employers being required to treat all cases involving employees
under the influence of alcohol,
as suffering from alcoholism,
regardless of whether they are actually ill or not.

The arbitrator’s
requirement that Fourth Respondent be afforded counselling in
accordance with the EAP is also inconsistent
with the underlying
principles that determine the application of the EAP - which is to
assist employees suffering from dependency
related problems.

Without being insensitive to the
personal problems of the employee, it would be inconsistent with the
purpose of Section 10 (3)
for Fourth Respondent, who is not an
alcoholic, to be treated for alcoholism just because she was having
a difficult time at
home. The requirement to assist employees
suffering under such a disease is precisely to protect genuinely ill
employees from
being dismissed for offences which they may commit
through no fault of their own as a result of such an illness. The
implication
is that employees who are not alcoholics are, in all but
the most sinister of situations, in control of their consumption of
alcohol and are fit to be held accountable for it.

Second Respondent’s ruling
indicates that he did not appreciate the purpose of the EAP and
illustrates that he failed to
appreciate the important distinction
between misconduct and incapacity in evaluating employee conduct.

Had the arbitrator applied the
relevant legal principles distinguishing between misconduct and
incapacity, he would have concluded
that Fourth Respondent was
guilty of misconduct and that the EAP was not, on the facts, an
appropriate avenue for dealing with
the matter. Accordingly, there
was no obligation or basis for the employer to have referred Fourth
Respondent to the EAP or to
address the matter by means of
counselling.

In addressing the factual
dispute before him on the incorrect application of the relevant
legal principles, Second Respondent
committed a gross irregularity
of a material nature in the conduct of the arbitration proceedings,
thereby resulting in Applicant
not being afforded a fair hearing at
arbitration. For the same reasons, Second Respondent’s
arbitration award amounts to
a decision that a reasonable decision
maker could not make.

Second Respondent’s award
that Fourth Respondent submit to rehabilitation in terms of the
company’s substance abuse
policy and to comply with that
policy is inconsistent with the proven facts that Fourth Respondent
was guilty of misconduct.
In the circumstances teh arbitrator
committed a gross irregularity in the conduct of the arbitration
proceedings and made a decision
that a reasonable decision maker
could not make.

Ground 2: Failure to consider
the importance of the rule that had been breached

As set out above, it was common
cause on the facts that Fourth Respondent had made herself guilty of
misconduct in presenting
herself for duty whilst under the influence
of alcohol.

It was further common cause that
Fourth Respondent was in a safety critical position which at all
times would require the strict
application of the rule that
employees may not be under the influence of alcohol at work.

Fourth Respondent had already
been disciplined in this regard and had a valid final written
warning on file. She had also been
counselled and educated on the
issue and danger of alcohol in the workplace.

The evidence was that Fourth
Respondent was responsible for tasks that were highly risky. Had
Fourth Respondent performed her
job in the state that she was in,
there could have been disastrous consequences and it had the
potential to result in death,
injury, or damage to company property.

Second Respondent failed to have
a proper appreciation of the importance of the strict application of
that rule in this matter.
Condoning such behaviour by Fourth
Respondent, especially when she already had a final written warning
for the same form of misconduct,
could send a message to Applicant’s
other safety critical employees that the company will tolerate such
behaviour. Mr Cassels said that this is a risk Applicant
simply cannot be expected to take. I do not think that is an
unreasonable stance.

I agree that, in assessing the
breach of the rule, the arbitrator placed too little, if any,
emphasis on the importance of the
rule that was breached by Fourth
Respondent and too much emphasis on other less relevant or otherwise
irrelevant factors, namely
that:

Fourth Respondent was not
allowed to work on the day of the incident and thus did not place
Applicant or its passengers in danger.
On the evidence before me,
it appears that it would have been extremely dangerous for Fourth
Respondent, given her position
in the company, to have worked in
her condition. The fact that Applicant discovered Fourth
Respondent’s intoxicated state
before she made it to her work
station places an unfair burden on Applicant and sets a precedent
that requires employers, who
wish to send the message that they
will not tolerate employees who are under the influence of alcohol,
to allow employees suspected
of such misconduct to report for and
perform their duties before intervening. Such a requirement could
have disastrous effects
and cannot be said to be in the best
interests of public policy. The Exactics–Pets case
does not support the conclusion reached by the Second Respondent in
this regard.

Fourth Respondent could have
been suspended in terms of the company policy. In this regard it is
noted that the court in Gcwensha v CCMA & others, supra,
was of the opinion that where a policy allowed for a certain course
of action to be taken for misconduct it does not follow
that such
action must be taken before dismissing an employee in certain
circumstances. Schedule 8 of The Code of Good Practice:
Dismissal
specifically acknowledges that circumstances may arise where the
misconduct of an employee is simply too serious
to justify any
action short of dismissal. It seems to me that Fourth Respondent’s
misconduct in the current case is one
such case that justifies
dismissal. Further, the dismissal of an employee on a final written
warning is consistent with progressive
discipline and, given the
seriousness of the offence, suspension would amount to a mere slap
on the wrist for an offence which
on Fourth Respondent’s own
record attracted a final written warning in the first instance. Any
sanction short of dismissal
would amount to Fourth Respondent not
being disciplined at all.

Fourth Respondent’s
performance had not been affected by her actions. But the issue
before the Second Respondent was not
one of performance. As
discussed above the issue was more properly classified as one of
misconduct and her performance is an
irrelevant factor. It is
pertinent to note that on the day in question Fourth Respondent’s
performance was indeed affected
by her actions – namely, she
was unfit to render her services to Applicant and had to be sent
home.

Fourth Respondent was aware of
the dangers and safety hazards of being present at work under the
influence of alcohol. How such
a factor could be considered to
mitigate Fourth Respondent’s misconduct is difficult to
understand. One of the reasons
for which Fourth Respondent’s
misconduct ought to be considered so serious as to warrant
dismissal is precisely that
Fourth Respondent knew of the dangers
and the risk to the safety of life and property that presenting
herself for duty while
under the influence of alcohol imported, and
yet she proceeded to do so anyway. Clearly educating her on the
dangers of such
behaviour did not deter her form committing the
misconduct.

Applicant had failed to have
sufficient regard for the circumstances which led to the offence
being committed. While Fourth
Respondent’s personal situation
may be regrettable, she was more than aware when she made the
conscious decision to consume
alcohol that she was required to
report for duty the following day and that, should she drink to
excess, she would most likely
still be intoxicated at that time.
The company had extended assistance to the employee and had
counselled her in respect of
her family situation and was, at her
behest, looking for a transfer. There is no reason why Fourth
Respondent could not have
sought further assistance from the
company. Despite this, Fourth Respondent chose of her own free will
and volition to drink
to excess and to report for duty under the
influence.

It is clear that in assessing
the matter as he did, Second Respondent disregarded relevant
evidence and had regard for irrelevant
considerations and thereby
made an award that was inappropriate on the facts and which was one
that a reasonable decision maker
could not make. In doing so, Second
Respondent was also guilty of committing a gross irregularity of a
material nature in the
conduct at the arbitration proceedings which
has resulted in Applicant not being afforded a fair hearing.

Ground 3: Failure to apply
relevant legal principles in respect of the serious written warning

I also find that the arbitrator
misdirected himself in concluding that, as Fourth Respondent was
four days short of the expiry
of a final warning for similar
misconduct and that, as Fourth Respondent had not been disciplined
for 11 months and 26 days for
similar misconduct, she had taken the
warning very seriously, which was a positive factor in favour of her
receiving a lesser
sanction than dismissal. The fact that such a
serious warning would expire in a few days cannot mitigate the
employee’s
repeated misconduct by showing that she adhered to
the rules for a period just short of the period of the warning’s
validity.

Such an application of a valid
final written warning is inconsistent with the principles of
progressive discipline and the decision
in National Union of
Mineworkers & Another v Amcoal Colliery t/a Arnot Colliery &
Another, supra. Failing to apply the sanction of
dismissal in these circumstances has the result of being no
punishment at all and renders progressive
discipline meaningless,
which is untenable - particularly in a situation involving serious
misconduct.

I am persuaded that Second
Respondent’s analysis of both the relevant legal principles
and the facts in this regard constitutes
a material gross
irregularity in the conduct of the proceedings, which has resulted
in Second Respondent making a decision that
a reasonable decision
maker could not make.

A reasonable decision maker
would have determined that the fact that Fourth Respondent did not
transgress the rule for almost
12 months was proof that:

She knew that such misconduct
was considered to be extremely serious by Applicant and that she
faced dismissal, should she commit
such an act again;

She was not an alcoholic and
was not suffering under any incapacity (as is common cause).

By failing to evaluate the
evidence relating to the valid serious written warning in accordance
with generally accepted legal
principles, Second Respondent
committed a gross irregularity in the conduct of the arbitration
proceedings which precluded Applicant
from having a fair hearing at
arbitration. Furthermore, Second Respondent’s flawed
evaluation of the evidence pertaining
to the serious written warning
resulted in Second Respondent making a decision that a reasonable
decision maker could not make
in the circumstances.

Ground 4: Fourth Respondent at
most acted negligently in the consumption of alcohol the night before
she booked on duty

It is not logically sustainable
for Second Respondent to have concluded that Fourth Respondent, in
consuming alcohol the night
before she booked on duty, at most acted
negligently. Fourth Respondent at all relevant times knew that she
had to report for
duty the next morning and that if she consumed
sufficient quantities of alcohol that night she would still be under
the influence
of alcohol when she was required to report for duty.
Furthermore, Fourth Respondent knew when she reported for work on 24
May
2009 that the probability existed that she was still under the
influence of alcohol.

The common cause facts are not
consistent with Second Respondent’s finding that Fourth
Respondent at most acted negligently.
Second Respondent’s
finding is also inconsistent with general principles of law relating
to negligence and culpability.

Second Respondent’s
failure to apply the relevant legal principles properly or at all
and to have proper or any regard for
the common cause facts amounts
to a gross irregularity in the conduct of the arbitration
proceedings which has resulted in Applicant
being refused a fair
hearing. Furthermore, for the same reasons Second Respondent made a
decision that a reasonable decision
maker could not make.

Ground 5: Second Respondent
exceeded his powers

Second Respondent directed that
Fourth Respondent report to rehabilitation in terms of paragraph 12
of Applicant’s Substance
Abuse Policy and that Fourth
Respondent must comply with such policy. I agree that in making that
award, Second Respondent exceeded
his powers in that Second
Respondent was tasked with determining the unfair dismissal dispute
on the basis of whether Fourth
Respondent’s dismissal by
Applicant was procedurally and/or substantively unfair. Although an
arbitrator may make any appropriate
arbitration award in terms of
the LRA, the award made by Second Respondent that Fourth Respondent
submit to rehabilitation and
comply with the relevant policy is not
contemplated in the context of the powers accorded to him in
determining a dismissal dispute.
In granting the award that he did,
Second Respondent descended into the realm of the employment
relationship not covered by his
terms of reference. Second
Respondent was tasked to determine the fairness of the dismissal
dispute. Second Respondent has granted
an order instructing the
parties to participate in a process within an ongoing employment
relationship in circumstances where
that process has no application
on the common cause facts presented to Second Respondent.

The award directing that Fourth
Respondent subject herself to rehabilitation is wholly inconsistent
with the proven facts that
Fourth Respondent committed misconduct.

CONCLUSION

For these reasons, the award
must be corrected and set aside. It would serve no purpose to refer
it back to the bargaining council
for an arbitration de novo.

Given that the respondents abide
the decision of the court, the applicant did not pursue its prayer
for costs.

I order as follows:

The arbitration award made by
Second Respondent under the auspices of First Respondent dated 29
July 2009 is reviewed and set
aside.

The award is replaced with the
following: “The dismissal of the employee (the fourth
respondent) was fair.”